United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS V M HAMBLY Free Representation Unit Plymouth Business School University of Plymouth Drakes Circus Plymouth PL4 8AA


 


JUDGE PETER CLARK: The Respondent administers a residential centre for the treatment of addiction to alcohol and drugs.

The Appellant commenced employment at the centre on 1 May 1989 as a trainee Counsellor. After one year he was appointed Assessment and Admissions Officer. His duties in that post included initially assessing applicants for treatment to see if they were adequately motivated and to liaise with other agencies and checking patients' rooms and so forth.

On the morning of 15 November 1995 a patient called Carolyn Fox told Mr Brooks, of the Respondent's staff, that she had become involved in an emotional relationship with the Applicant and spoke of intimate situations in his office. Later that day the Appellant was suspended from duty. An investigation was carried out which included an interview by a senior Counsellor at the Centre, Ms Richman with Mrs Fox on 16 November, and later on 20 November Mrs Fox signed a handwritten statement at home, she having left the Centre on Sunday 19 November in which she described acts of intimacy in the Appellant's office, falling short of full sexual intercourse.

On 21 November 1995 a disciplinary hearing was held before the Chief Executive, Mr Ward and at the end of that hearing he summarily dismissed the Appellant. The Appellant then appealed to Mr Adams, the Deputy Chairman of the Respondent's Council of Management. That appeal was not heard until 18 December partly as a result of two suicide attempts by the Appellant in the meantime. The appeal was dismissed.

On 14 February 1996 the Appellant presented an Originating Application to the Industrial Tribunal complaining of unfair dismissal. That complaint was heard by the Plymouth Industrial Tribunal and was dismissed for reasons which were promulgated on 16 August 1996. The Tribunal were divided. The majority found that the dismissal was fair, the minority member thought that it was unfair. Against that decision the Appellant now appeals.

This is a preliminary hearing held to determine whether or not that appeal contains any arguable error or errors of law on the part of the Tribunal majority.

In support of the appeal today Ms Hambly takes four points. First, she says that the dismissal was procedurally unfair in that the employer decided to hold a disciplinary hearing before it had carried out any investigation into Mrs Fox's allegations.

Secondly, that prior to the disciplinary hearing held on 21 November the Appellant had not been given access to any of the information which had been gathered by the employer during the investigatory period. Further, he had not himself been interviewed during the course of the investigation.

Thirdly, she says that the investigating Officer, Mr Hazzard, was biased and that at the disciplinary hearing he had discussed the Appellant with the Chairman, Mr Ward. He had taken minutes at that meeting and had improperly influenced Mr Ward in reaching his decision.

Fourthly, she says that the appeal hearing should not have taken place on 18 December in the light of the Appellant's two earlier suicide attempts. It should have been adjourned by Mr Adams.

She relies on those four matters in support of the contention that the majority's decision in this case was perverse in the sense that no reasonable Industrial Tribunal, properly directing itself, could come to the conclusion on the facts as found that the dismissal was fair. Further, she says that the majority's decision was perverse in finding that a reasonable investigation was carried out by the employers in light of the matters which she has advanced.

The Tribunal's reasoning is contained in paragraphs 17 and 18 of the Reasons. Put shortly, the minority member accepted the complaints made on behalf of the Appellant about the employer's procedure and he came to the conclusion that the dismissal was unfair on that basis.

The majority disagreed. They dealt with each of the four points which are advanced before us today in paragraph 18 of the Reasons, which reads as follows:

"18 The majority of us shared, to a degree, Mr Crowley's [the minority member] concern at the respondent's failure either to supply copies of the statements prior to the disciplinary hearing or to appraise the applicant of the gist of them, or interview him for a more detailed investigation of his side of things. On the other hand, the majority did not regard that failing as so grave as to render the dismissal unfair, given the fact that the applicant was formally offered an adjournment of 10 days after the detailed allegations had been put to him, in which he could prepare any defence; and he was also offered the opportunity to cross-examine any of the witnesses whose statements had been provided. We did not share the concern over the discussion between Mr Hazzard and Mr Ward; the majority of us were satisfied that Mr Ward reached his own conclusions and was not unfairly influenced by anything that Mr Hazzard may have said. As to the appeal, the applicant in his evidence before us explained that he had been advised that the appeal was likely to be no more than a formality and was unlikely to be successful; and that he was still on medication after his discharge from hospital but felt that he could cope with the appeal hearing so long as he simply read a prepared text and did not try to take any further part in the proceedings. The majority of us were unimpressed by that argument; the respondent can hardly be blamed if the applicant elects to take advice which is, effectively, not to put one's best foot forward at the appeal; and it was plainly open to him to have sought an adjournment had he felt that he could not cope with the hearing at that point. The majority of us were satisfied that Mr Adams did his best to tease out of the applicant any points in his favour and rejected the appeal when it became apparent that the applicant could go no further than to maintain his denials."

It seems to us that it was open to the Industrial Tribunal to reach either, the view of what turned out to be the minority member, or the view of the majority. This is an example of a case in which the industrial jury has a range of responses and it seems to us that it cannot be said that the majority's conclusions and the reasoning behind those conclusions, are properly to be characterised as perverse.

It follows, in our judgment, that this appeal discloses no arguable point or points of law and in those circumstances it must be dismissed.